A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Saturday, 21 September 2013

The Sudanese government has very
cleverly applied to the United States for a visa so that President Bashir can
attend the upcoming session of the United Nations General Assembly. This move
highlights the problems with the position that the Court has taken respecting
the existence of immunities. As head of State of a United Nations Member State,
it is axiomatic that Bashir is entitled to participate in the United Nations
General Assembly.

Under the Charter of the United Nations,
(Article 105 (2)): ‘Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their functions in
connexion with the Organization.’ The Charter takes precedence over the Rome
Statute of the International Criminal Court.The headquarters agreement between the United States and the United
Nations requires that travel be facilitated to United Nations headquarters.
This too is beyond dispute. Dr Dapo Akande of Oxford University has very fully
and eloquently set out the situation in a blogpost on Ejil Talk.

He concludes:

In sum, the US is bound allow Bashir to
attend the GA session and not to arrest him. Quite rightly too. The obligations
in question are rather limited, they are temporary and are of great importance
for the ability of the UN to function without interference. Thus, they are
ultimately of great importance for the maintenance of a system of peaceful
relations among states. Participation by states in the UN is part of the very
essence of the UN system. Allowing encroachment of that right would set a
damaging precedent for the system. Enforcement of ICC arrest warrants is not
ultimately dependent on what happens with respect to UN summits.

Almost two years ago, the Pre-TrialChamber of the Court took a very extreme position, holding that Bashir had no
immunity at all as a consequence of article 27 of the Rome Statute.

The entirely simplistic analysis by the
Pre-Trial Chamber was even inconsistent with the relationship agreement that
the Court had signed with the United Nations.According to article 19 of that Agreement:

Article 19. Rules concerning United
Nations privileges and immunities

If the Court seeks to exercise its
jurisdiction over a person who is alleged to be criminally responsible for a
crime within the jurisdiction of the Court and if, in the circumstances, such
person enjoys, according to the Convention on the Privileges and Immunities of
the United Nations and the relevant rules of international law, any privileges
and immunities as are necessary for the independent exercise of his or her work
for the United Nations, the United Nations undertakes to cooperate fully with
the Court and to take all necessary measures to allow the Court to exercise its
jurisdiction, in particular by waiving any such privileges and immunities in
accordance with the Convention on the Privileges and Immunities of the United
Nations and the relevant rules of international law.

But if there is no immunity as a result
of article 27, what is there to waive? Belgium had made the argument when the
Relationship Agreement was being drafted, but the United Nations Secretariat
didn’t agree. Thus, the Court acknowledged that immunities exist, and that
article 27 does not provide a full answer when someone is charged before the
Court.

Since Dr. Akande’s post, the Pre-TrialChamber has issued a decision on the matter. It follows a ‘notification’ by the
Prosecutor asking ‘that the Chamber take steps to ensure that the arrest
warrants are executed’. Here are the relevant conclusions of the Decision

Reminds the United States of America of
the two outstanding warrants of arrest issued against Omar Hassan Ahmad Al
Bashir and the requests for arrest and surrender transmitted by the Registry on
6 March 2009 and 21 July 2010;

Invites the competent authorities of the
United States of America to arrest Omar Hassan Ahmad Al Bashir and surrender
him to the Court, in the event he enters their territory;

It is a curious conclusion because it seems as if the Pre-Trial Chamber is actually encouraging the United States to issue the visa to Bashir.

Neither the Prosecutor’s application nor
the decision of the Trial Chamber refers to article 98(1) of the Rome Statute:

Article 98

Cooperation with respect to waiver of
immunity and consent to surrender

1. The Court may not proceed with a
request for surrender or assistance which would require the requested State to
act inconsistently with its obligations under international law with respect to
the State or diplomatic immunity of a person or property of a third State,
unless the Court can first obtain the cooperation of that third State for the
waiver of the immunity.

It would have been interesting to have
some discussion of the relevance of this injunction to the Court that it ‘may
not proceed with a request for surrender or assistance which would require the
requested State to act inconsistently with its obligations under international
law with respect to the State or diplomatic immunity of a person or property of
a third State’. Perhaps someone could explain why article 98(1) doesn’t apply
here. Probably if the proceedings before the Pre-Trial Chamber were genuinely adversarial this issue might have been addressed. This is a rather common problem when important precedents are set in ex parte proceedings before the Court.

Some pundits have been suggesting that immunity is trumped because Bashir has been charged with genocide. The magic
of jus cogens is supposed to blow away arguments based on various international
agreements and even the Charter of the United Nations. In this respect, it is
worth recalling the words of the International Court of Justice in a very recent
case, where the ‘logical problem’ of maintaining that immunity evaporated
because serious crimes are charged was addressed. The Court was speaking of State immunity,
but the reasoning applies to individuals too. It noted that if ‘the mere allegation
that the State had committed such wrongful acts were to be sufficient to
deprive the State of its entitlement to immunity, immunity could, in effect be
negated simply by skillful construction of the claim’ (Jurisdictional Immunities of the State, para. 82). Isn't that what is happening here? Can it really be
the case, as some contend, that the legal position of Sudan and Bashir has been
drastically altered merely because a Pre-Trial Chamber of the Court ruled that
there were ‘reasonable grounds’ to allow the Prosecutor to pursue a charge of
genocide (after initially concluding that there were not even reasonable grounds and then being 'corrected' by the Appeals Chamber which said it had set too demanding a standard)?

Dr Akande’s comment, cited above, about
the importance of full participation in the United Nations system is extremely
helpful. However frustrating the international law on immunities may seem
because of its impact on accountability, immunities also fulfill a very important
purpose in encouraging international peace and security.

Obstructing Bashir's visit to New York is not without consequences over the long term. The same reasoning also applies to ad hoc peace negotiations like, for example, what is now being proposed in Geneva with respect to Syria. Is there not a profoundly important value to the international system in having a rule that facilitates negotiations between heads of State and similar officials, whatever we may think of them?

Suppose the principle
were to be established that a head of State was not immune from arrest pursuant
to a warrant of the International Criminal Court when attending the United
Nations General Assembly. Probably many governments would then question the safety of
traveling to New York. After all, the Court – and other international criminal
tribunals – can issue arrest warrants secretly. Traps would be set. The world
would not be better off if the General Assembly ceased being a secure,
privileged forum with its sacred mission of promoting international peace.

Yesterday, Brian Farrell successfully defended his doctoral thesis entitled 'Habeas Corpus in International Law' at the Irish Centre for Human Rights of the National University of Ireland Galway. Prof. John Jackson of the University of Nottingham was the external examiner, and I was the international examiner. The award of the degree was recommended without corrections. Brian's research was supervised by Dr. Kathleen Cavanaugh. Bravo, Brian!

Sunday, 15 September 2013

The Secretary-General of the United Nations stated that
President Assad of Syria ‘has committed many crimes against humanity’. See it for yourself on You-tube.

This is a very unusual and perhaps unprecedented occurrence.
It raises questions about the presumption of innocence given the possibility that
the United Nations Security Council could refer the situation in Syria, and
with it the case of Assad, to the International Criminal Council.

Before the existence of international criminal justice it
may have been appropriate for senior international public officials to condemn individuals
in such a manner. There was no possibility of trial at the international level.
The issue of the presumption of innocence in judicial proceedings did not arise
in any realistic way.

Everything has changed in recent years as a result of the development of international criminal justice institutions. Perhaps this
means that people like the Secretary-General of the United Nations need to be
more prudent in their statements than they might have been a few decades ago.

Were Assad ever to be charged before the International
Criminal Court, he would have an arguable case that his right to the
presumption of innocence – enshrined in article 66 of the Rome Statute – has been
breached by Ban Ki-Moon’s statement.

In a case with many similarities, the European Court of Human Rights has held that where a
senior official in the government condemned an individual of a crime before he
or she had been brought to trial, an issue of the presumption of innocence
arose. In Allenet de Ribemont v. France,
the Court held there had been such a breach, referring to ‘a
declaration of the applicant’s guilt which, firstly, encouraged the public to
believe him guilty and, secondly, prejudged the assessment of the facts by the
competent judicial authority’.

It would be preferable for the Secretary-General to
say ‘there may be serious grounds to believe Assad has committed crimes against
humanity and he should be brought to trial to establish if this is the case’ or
something similar. This is a better message in that it signals the gravity of
the charges against Assad but at the same time insists upon the integrity of
the judicial process.

Wednesday, 11 September 2013

The School of Oriental and African Studies is hosting a conference in London on the occasion of the seventieth anniversary of the establishment of the United Nations War Crimes Commission. Yesterday, Justice Richard Goldstone delivered the keynote address. Speakers from a range of disciplines, including law, politics and history, are presenting papers on the activities of the Commission whose role in the early development of international criminal law was so important.

Richard Goldstone, centre, with Don Ferencz, right, and myself at yesterday's session of the Conference.

Information about the conference is available here. The papers will be published next year in a special issue of the Criminal Law Forum.The main organisers of the conference, Dan Plesch and Shanti Sattler, have managed to secure the opening of the United Nations archives with respect to the Commission. They have their own great website on the Commission. Many of the relevant documents are now available in the legal tools section of the website of the International Criminal Court. The have also produced pdfs of the official history of the Commission, published in 1948.

Monday, 9 September 2013

This item is for those who are interested in the history of international human rights law. A few days ago, while researching a talk on the beginnings of international criminal prosecutions during the Second World War in the archives of the London International Assembly, I stumbled upon an early attempt at codifying human rights. Several writers and organisations had prepared draft declarations and these were consulted by the Commission on Human Rights in preparation of the first draft of the Universal Declaration of Human Rights (see UN Doc. E/CN.4/W.16). I was surprised to note that the text of the London International Assembly does not appear to have attracted the attention of the Commission on Human Rights. It is not mentioned in UN Doc. E/CN.4/W.16. Nor have I found any references to it in the scholarly writing on the preparation of the Universal Declaration of Human Rights.The London International Assembly was a civil society organisation with broad representation of government representatives at the highest levels or people close to government as well as public intellectuals and academics that met in London starting in 1941 with the goal of reaching consensus on what the post-war world would look like. One of its commissions studied issues of international criminal law, preparing a draft statute for an international criminal court that was then fed the work of the United Nations War Crimes Commission.

The human rights work that it undertook seems to have escaped attention. Here is the document.

Saturday, 7 September 2013

At
the close of the G20 meeting, eleven states issued a declaration concerning
Syria calling for ‘a strong international response to this grave
violation of the world’s rules and conscience that will send a clear message
that this kind of atrocity can never be repeated’. They are Australia, Canada, France, Italy, Japan, Republic of Korea,
Saudi Arabia, Spain, Turkey, the United Kingdom, and the United States.

The expression
‘world’s rules’, and the slightly longer formulation ‘world’s rules and
conscience’, is intriguing. It seems to suggest international law. But why not then use a term
that is familiar?

The term did not appear anywhere in
the materials on the United Nations website. A search in Google Books turned up
many references to ‘world’s rules’, although not in the context of
international law. It seems the term is used mainly in religious writings.

Are the
eleven States suggesting that there is some other normative source relevant to
the Syria issue that is different from and independent of international law?
Are they proposing the ‘world’s rules’ as a synonym for international law? Or
are they suggesting the 'world's rules' as a source of international law that is distinct
from the classic list provided in article 38 of the Statute of the
International Court of Justice?

There are, to be sure, sources of
international law that do not appear in article 38. Jus cogens (peremptory
norms) would be one such source. The famous Martens clause of the Hague
Conventions provides another: ‘the principles of the law of nations, as
they result from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience’. There is the reference
to ‘elementary considerations of humanity’ by the International Court of
Justice in the Corfu Channel Case. And to ‘moral law and to the spirit and
aims of the United Nations’ in the Advisory Opinion on Reservations to the
Genocide Convention by the International Court of Justice. Some will say that these are all concepts subsumed within customary international law, which is of course part of the list provided by article 38. But customary law is based upon the conduct of States and on expressions of their understanding of law. Concepts like 'considerations of humanity', 'moral law' and 'the laws of humanity' must exist autonomously, regardless of whether States comply with them.

Friday, 6 September 2013

England
may be a small island, but it is a bit unfair, as one of Putin’s aides
allegedly said in St. Petersburg the other day, that nobody listens to it.
Here’s what the Prime Minister, David Cameron, said yesterday:

“Our strong legal advice is that the there
is a responsibility to protect - a case for humanitarian intervention because
you are preventing a humanitarian catastrophe,” Mr. Cameron said.

“There was an argument from some that unless
it is self-defence or unless there is a Security Council resolution there is no
legal basis for taking action. I don’t think that is the case. I think it is a
very dangerous doctrine.”

'Strong legal advice'? Really? Maybe Cameron has been reading a Foreign Office legal memorandum from the eighteenth century. I doubt there is a serious international lawyer in the Foreign and Commonwealth Office who could keep a straight face making such an outrageous claim.

Of course, Cameron is correct to say that there
is a ‘responsibility to protect’. But he grossly misrepresents what it means. The ‘responsibility to protect’ was affirmed
in a resolution of the General Assembly adopted in September 2005. Here is the relevant
part of the text:

139. The international community, through the United Nations, also has
the responsibility to use appropriate diplomatic, humanitarian and other
peaceful means, in accordance with Chapters VI and VIII of the Charter, to help
to protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity. In this context, we are prepared to take collective action,
in a timely and decisive manner, through the Security Council, in accordance
with the Charter, including Chapter VII, on a case-by-case basis and in
cooperation with relevant regional organizations as appropriate, should
peaceful means be inadequate and national authorities are manifestly failing to
protect their populations from genocide, war crimes, ethnic cleansing and
crimes against humanity. We stress the need for the General Assembly to
continue consideration of the responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity and its
implications, bearing in mind the principles of the Charter and international
law. We also intend to commit ourselves, as necessary and appropriate, to
helping States build capacity to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity and to assisting those
which are under stress before crises and conflicts break out.

Note the insistence that the ‘responsibility
to protect’ is to be exercised ‘through the United Nations’, and ‘through the
Security Council, in accordance with the Charter’. The United Kingdom was part of the consensus at the Summit of Heads of State and Government where this statement was adopted.

As for the second part of his statement, the
notion that the use of force is only authorized under only two circumstances
comes from the Charter of the United Nations. It is not simply a ‘doctrine’. It
is international law that binds the United Kingdom. Is Cameron really saying
that the Charter of the United Nations is the source of a ‘very dangerous
doctrine’?

The British government has a history of thinking
it can defy international law. Or rather that it can purport to be the global
equivalent of Arnold Schwarzenegger, delivering its own brand of frontier justice.
International courts have been telling it to behave since the earliest days of
international adjudication nearly 200 years ago.

More recently, in the first great ruling of
the International Court of Justice, where the United Kingdom was pitted against
Albania, the Court said of Britain’s infringement of Albanian sovereignty:

The Court can only regard the alleged right of intervention as the
manifestation of a policy of force, such as has, in the past, given rise to
most serious abuses and such as cannot, whatever be the present defects in
international organization, find a place in international law. Intervention is
perhaps still less admissible in the particular form it would take here; for,
from the nature of things, it would be reserved for the most powerful States,
and might easily lead to perverting the administration of international justice
itself.

These words are as accurate a statement of
international law today as they were sixty-four years ago, when the United
Kingdom was condemned by the International Court of Justice for violating
international law.

Last
night I attended the screening of No Fire Zone, The Killing Fields of SriLanka, a feature-length film about atrocities attributable to the government of
Sri Lanka as it crushed the Tamil Tigers in 2009. It is based on the two
documentaries made by director Colum Mcrea for Channel 4 but there is also much
new footage and the presentation is quite fresh and different. Check the
website of the film for information about how to see it. Residents of the UK
can get it for a small price on www.distrify.com. Also, check out the special presentation of the film on Prezi.

The
film is released as part of a campaign as Sri Lanka prepares to host the
Commonwealth Heads of Government Meeting in November. Last night, Colum and
Channel 4’s Jon Snow both said they plan to be in Colombo for the meeting.

Tuesday, 3 September 2013

Conference
on the Future Role of the European Court of Human Rights

iCourts & Freedom Rights Project, Copenhagen, 15 November 2013

Recent years have seen a growing number of discussions about the role of
the European Court of Human Rights (ECtHR). Some critics have accused the ECtHR
of engaging in judicial activism, using its own notion of evolutionary
interpretation to gradually expand the scope of the Convention. Others have
argued that by doing so the ECtHR only fulfils its task of providing an
up-to-date human rights protection in an increasingly integrated Europe. These
debates are in part fuelled by normative differences in the perceived role of
the ECtHR in the protection of human rights in Europe. Whether the ECtHR should
play a limited constitutional role or not is therefore hardly only a legal
matter. It is also a political one, which will have significant implications
for European citizens and national democracy, as well as for the very idea of
European integration by law.

This conference addresses the question of what the role of the ECtHR should
– and could – be in the contemporary and future protection of human rights in
Europe. It brings together a distinct group distinguished European judges
and renowned scholars from the field of human rights to debate these questions
and suggest ways forward for the ECtHR.

Monday, 2 September 2013

Some readers may be interested in a recent article on the Eichmann Trial that I have published in the current issue of the Leiden Journal of International Law. The publishers allow authors to post a copy, acknowledging that this is published by Cambridge University Press. I should also provide a link to Cambridge Journals Online, but it doesn't seem to work. Finally, here is the full bibliographic reference:William Schabas,'The Contribution of the Eichmann Trial to International Law', (2013) 26 Leiden Journal of International Law 667-699.The article examines academic commentary at the time of the trial. By and large, it was rather negative and regarded the proceedings as an embarrassing blemish on international law. History has shown that this was not an accurate assessment. Most of the big legal findings by the judges in Eichmann have stood the test of time.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.